James von Brunn, the alleged assailant in yesterday’s fatal shooting of Stephen Johns at the Holocaust museum, has a long history of racist, anti-semitic, anti-government speech and action. Would he have been a proper target for law enforcement intelligence gathering?
Mr. von Brunn is an 88 year-old, military veteran with a prolific and, until today, easy-to-access collection of writings attesting to his hatred of certain groups. Many of these writings and rambling threats have been available at www.holywesternempire.org. This morning the URL announces: “HTTP 403 Forbidden.” He is the author of a 1999 book entitled, Kill the Best Gentiles.
The Southern Poverty Law Center has listed Mr. von Brunn’s website among its large collection of “hate sites.” The Anti-Defamation League has also monitored Mr. von Brunn. (See more from USA Today.) Would it be appropriate for local, State, or federal law enforcement agencies to collect and store similar information? Or does such information fall within the constitutional provisions of protected speech?
Arguably the most common legal standard for answering the question is 28 CFR, part 23 (or Title 28 of the Code of Federal Regulations, part 23). This regulation was established, in part, to counter abuse of protected speech by law enforcement agencies in the 1960s and 1970s.
The core legal standard for gathering, collecting, and sharing information (or not) is set out as follows.
§ 23.20 Operating principles. (a) A project shall collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity. (b) A project shall not collect or maintain criminal intelligence information about the political, religious or social views, associations, or activities of any individual or any group, association, corporation, business, partnership, or other organization unless such information directly relates to criminal conduct or activity and there is reasonable suspicion that the subject of the information is or may be involved in criminal conduct or activity. (c) Reasonable Suspicion or Criminal Predicate is established when information exists which establishes sufficient facts to give a trained law enforcement or criminal investigative agency officer, investigator, or employee a basis to believe that there is a reasonable possibility that an individual or organization is involved in a definable criminal activity or enterprise. In an interjurisdictional intelligence system, the project is responsible for establishing the existence of reasonable suspicion of criminal activity either through examination of supporting information submitted by a participating agency or by delegation of this responsibility to a properly trained participating agency which is subject to routine inspection and audit procedures established by the project.
In the case of Mr. von Brunn was there reasonable suspicion? How about criminal predicate? Were there a sufficient number of “trained law enforcement or investigative agency” personnel assigned to establish reasonable possibility?
I am not a trained law enforcement officer. But I sometimes train such officers. If I had, before yesterday’s attack, read Mr. von Brunn’s writings, I would not have perceived strong grounds for ”reasonable suspicion.” I would have had difficulty reading much of the hate-filled, often turgid prose and would have quickly moved on to other targets of concern. (Even last evening, with the day’s events underlining the potential importance, it was a slog to read.)
If for some reason I was motivated to do additional research, I might have established “criminal predicate.” In 1983 von Brunn was convicted of several charges and imprisoned for an armed attempt to “arrest” Paul Volcker and other members of the Federal Reserve Board. But even with criminal predicate in hand, given the quarter-century elapsed and the age of the suspect, it is unlikely I would have established “reasonable possibility.”
Which would have done nothing to save the life of Stephen Johns and — if not for the response of Mr. Johns and other security guards — my inaction could have led to the death and injury of many others at the museum.
I am not arguing for an easy answer. I am suggesting the need to wrestle with a very tough question. We can invest so much in defending pre-established positions that, too often, there is little energy left for crafting an imperfect, but principled solution.
(This event’s connection with the withdrawn DHS report on right-wing extremism is covered by Ed O’Keefe in this morning’s Eye Opener. And if you are looking for evidence of the energy invested in defending pre-established positions, check out the comments on O’Keefe’s report.)
Museum Suspect’s Writings Had Not Triggered a Probe (Washington Post)
Shootings show threat of ‘lone wolf’ terrorists (Associated Press)